Agreeing pre-commencement conditions for tree protection

A condition that says no development shall take place until a tree protection scheme has been approved cannot be imposed on your permission in England without your written agreement. Section 100ZA of the Town and Country Planning Act 1990 says so, and the pre-commencement condition trees question is therefore a negotiation rather than something handed down with the decision notice. The trap is that silence counts as agreement if the council has followed the notice procedure properly.

So the email you ignore for a fortnight is the email that decides your conditions.

Why pre-commencement conditions need written agreement

Section 100ZA(5) provides that planning permission for development in England may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition, except in circumstances prescribed by regulations.

The purpose was to stop conditions being used to defer decisions that should have been taken before determination, and to stop applicants being handed a permission they cannot lawfully implement for six months.

It applies to any condition that has to be complied with before development begins or before a specified part of the development begins. So a condition requiring approval of materials before development above damp-proof course level is caught, and so is a condition requiring tree protection fencing before any site activity.

It does not apply to conditions that bite after commencement, which is why some conditions move rather than disappear.

How the notice and response procedure works

The exception is set out in regulations made in 2018, and it works as a deemed agreement.

Where the authority gives the applicant written notice of the proposed condition, the reasons for it, the reason for making it pre-commencement, and invites a substantive response within a stated period of at least ten working days, and the applicant does not respond substantively within that period, the agreement requirement falls away and the condition can be imposed.

Three practical consequences.

1. Diarise the deadline the day the notice arrives, because ten working days is two weeks and a case officer's inbox is not a reminder service.
2. A substantive response means engaging with the terms, not acknowledging receipt. Say what you accept, what you do not, and what alternative wording you propose.
3. Keep the exchange in writing in one thread, because the agreement forms part of the permission's history and may be read years later by a different officer.

Where no notice is served and no agreement is given, a pre-commencement condition imposed anyway is vulnerable, although challenging it after the event is slower and more expensive than negotiating it before.

Conditions that cannot sensibly come later

Being entitled to object is not a reason to object to everything. Some conditions have to be pre-commencement because the thing they control happens at the start.

Tree protection is the clearest example. Protective fencing has to be in place before any plant, materials or spoil arrive on site, because the damage it prevents happens in week one. A condition requiring an arboricultural method statement and tree protection plan to be approved before site activity is doing its job properly.

Accept those and spend your negotiating capital on the ones that do not need to be first: materials, external lighting, boundary treatments, landscape planting, bin and cycle stores, drainage details that do not affect the levels design, and anything about the finished building.

Negotiating wording that can be discharged

The aim is not to remove the condition. It is to produce wording you can actually discharge without stopping the job.

Five drafting moves that work.

Carve out enabling works. Ask for the trigger to be no development other than site set-up, fencing, demolition and ground investigation, so you can mobilise while details are being considered.

Move the trigger later where the risk allows. Materials approved before any work above slab level, landscaping approved before first occupation, and lighting approved before installation are all perfectly effective and none needs to be pre-commencement.

Narrow the submission requirement. A condition asking for an arboricultural method statement for works within root protection areas is dischargeable. One asking for a scheme of landscaping, tree protection, ecological mitigation and construction management in a single approval is not, because one weak element holds up all four.

Name the standard rather than describing the outcome. A condition referring to tree protection in accordance with the current British Standard on trees in relation to design, demolition and construction gives both sides a fixed target, and the root protection area calculation that standard requires is explained in the root protection area calculation for multi-stem trees.

Split compound conditions. One condition, one subject, one discharge application.

What happens if agreement is refused

If you refuse to agree a pre-commencement condition and the authority has not used the notice procedure, it has three options. It can grant permission without the condition, which it will only do if the risk is acceptable. It can impose the condition in a form that bites after commencement, which is often the sensible landing point. Or it can refuse permission on the basis that the development is unacceptable without the control.

That third possibility is the honest reason not to treat the provision as a veto. Refusing a tree protection condition on a site with mature trees invites a refusal citing the absence of a mechanism to protect them, and an inspector is unlikely to criticise the council for that.

Negotiate the trigger and the scope. Arguing the principle of protecting the trees is a losing position.

Timing the discharge application

Submit the discharge application before you need the answer. The authority has a statutory period to determine it, and the fee is set per request in the national fee regulations, so check the current figure rather than working from an old invoice.

Two mechanisms help where the authority is slow. A deemed discharge procedure exists under the Act and the procedure order, allowing an applicant to serve notice and treat certain conditions as discharged where the authority has not determined the application in time. It does not apply to every category of condition, so check whether yours is excluded before relying on it.

The other is simply to submit a complete package. Most delay on arboricultural conditions comes from a method statement that does not match the drawings, so make sure the tree protection plan, the site layout, the drainage runs and the level changes all agree with each other. The practical sequence for getting these approved quickly is set out in discharging a tree protection condition without delay.

Ask for written confirmation of discharge, not a verbal assurance, and keep it with the decision notice.

Starting work lawfully

A material operation under section 56 of the Town and Country Planning Act 1990 starts the development, which includes digging foundation trenches, laying out a road and demolition of part of a building.

Where a condition is a true condition precedent, carrying out a material operation before it is discharged means the works are not carried out under the permission at all. The courts have taken that position consistently, and the consequence is severe: the permission may be incapable of implementation, and on a time-limited permission that approaches the three-year deadline it can expire while you are arguing about it.

So three checks before anything moves onto site.

• List every condition on the decision notice that is expressed as preceding commencement, and confirm each is discharged in writing.
• Check whether any of them excludes site set-up, and if not, do not put the welfare cabin on the root protection area.
• Photograph the protective fencing in position, dated, before the first delivery.

A Tree Survey and arboricultural method statement prepared to the current British Standard, with a tree protection plan that matches the approved layout, is what makes the discharge straightforward, and the planting side of the obligation is covered in tree planting conditions, species, stock size and establishment. Councils usually expect a suitably qualified arboriculturist, and professional review is strongly advised.

A short Planning Statement at application stage that explains how trees will be protected sometimes removes the need for the argument altogether, because the officer can see the mechanism before drafting the condition. To see which documents your application is likely to need, enter your postcode on PlanScope.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.